Nuclear Waste P'ship, LLC v. Nuclear Watch N.M.
| Decision Date | 09 November 2021 |
| Docket Number | A-1-CA-37894 |
| Citation | 505 P.3d 886 |
| Parties | NUCLEAR WASTE PARTNERSHIP, LLC and United States on behalf of United States Department of Energy, Applicants-Appellees, v. NUCLEAR WATCH NEW MEXICO and Southwest Research and Information Center, Protestants-Appellants, and Steve Zappe and Hazardous Waste Bureau, Protestants, In the Matter of the Draft Hazardous Waste Facility Permit for Calculating Final Disposal Volumes Waste Isolation Pilot Plant EPA Id No. NM4890139088. |
| Court | Court of Appeals of New Mexico |
Law Office of Robert A. Stranahan, IV, Robert A. Stranahan, IV, Santa Fe, NM, Hance Scarborough, LLP, Michael L. Woodward, Austin, TX, Fritz, Byrne, Head & Gilstrap, PLLC, J.D. Head, Austin, TX, Gallagher & Kennedy, Dalva L. Moellenberg, Santa Fe, NM, for Appellee Nuclear Waste Partnership, LLC
United States Department of Justice, Michael H. Hoses, Assistant United States Attorney, Albuquerque, NM, Environment and Natural Resources Division, John E. Sullivan, Sarah Izfar, Washington, DC, for Appellee United States Department of Energy
Lindsay A. Lovejoy, Jr., Santa Fe, NM, for Appellants
Hector H. Balderas, Attorney General, Santa Fe, NM, Christal Weatherly, Special Assistant Attorney General, Christopher J. Vigil, Special Assistant Attorney General, Albuquerque, NM, for Administrative Agency NM Environment Department
{1} Appellants Southwest Research and Information Center and Nuclear Watch New Mexico appeal the order of the Secretary of the New Mexico Environment Department (NMED) approving a permit modification request that modified the method by which Appellees Nuclear Waste Partnership LLC (NWP) and the U.S. Department of Energy (DOE) track waste volumes disposed of at a radioactive waste repository. Appellants argue that the administrative Hearing Officer, Max Shepherd (the Hearing Officer), should have been disqualified and that NMED's order was contrary to law, arbitrary and capricious, and an abuse of discretion. Finding no error,1 we affirm.
{2} The following undisputed facts2 are reflected in the Hearing Officer's report, which was adopted by NMED. The underlying permit request addresses the method of volumetric measurement for Transuranic (TRU) waste disposed of at a federal repository for radioactive waste material.
{3} For shipping and safety reasons, this waste is often packaged inside multiple containers, with an inner waste container placed inside a larger container, a process characterized as "overpacking."3 At issue here is whether the volume of the waste should be calculated and tracked based on the size of the inner waste container or based on the larger outer container, which includes significant "void space [between the inner and outer container] made of air and/or dunnage (inert material), which is not waste." The outer container volume equates to 30 percent greater volume based on packaging.
{4} The containers are disposed of at the Waste Isolation Pilot Plant (WIPP). WIPP is an underground federal repository for radioactive waste material located in New Mexico. WIPP was authorized to "demonstrate the safe disposal of radioactive waste materials generated by atomic energy defense activities" and "isolate and dispose of DOE's inventory of defense [TRU] waste in a manner that protects public health and the environment." The WIPP facility consists of Hazardous Waste Disposal Units (HWDUs), which are underground rooms designated for the disposal of waste containers. In practice, the TRU waste disposed of at WIPP is "TRU mixed waste[,]" which contains radioactive waste mixed with hazardous waste.
{5} Radioactive materials are regulated by DOE, pursuant to the Atomic Energy Act of 1954. Hazardous materials, by contrast, are regulated by NMED, pursuant to the Resource Conservation and Recovery Act (RCRA), which authorized the State to implement a hazardous waste program "equivalent to" the federal RCRA requirements. 42 U.S.C. § 6926(b)(1). This equivalent hazardous waste program was enacted through the New Mexico Hazardous Waste Act (HWA), NMSA 1978, Sections 74-4-1 to -14 (1977, as amended through 2018), which adopted RCRA regulations and authorized NMED to regulate WIPP and issue permits regarding storage of hazardous waste at WIPP. Thus, NMED, pursuant to its RCRA authority, "has regulatory authority over the hazardous waste portion of TRU mixed waste." NMED "manages all waste emplaced at WIPP as TRU mixed waste."
{6} With regard to the volumetric waste capacity of TRU waste at WIPP, the Waste Isolation Pilot Plant Land Withdrawal Act (LWA) of 1992, limits its total amount to 6.2 million cubic feet. Pub. L. No. 102-579, 106 Stat. 4777 Pub. L. No. 104-201, 110 Stat. 2422 (1996). The LWA, however, does not specify a volumetric calculation method for TRU waste or TRU mixed waste.
A. The Permit Modification Request
{7} As co-operators of WIPP, DOE and NWP (Permittees) held a permit to dispose of TRU mixed waste at WIPP but sought NMED approval to modify their permit. The original permit anticipated the emplacement of 6.2 million cubic feet of TRU mixed waste based on the assumption that the waste containers would be full of TRU mixed waste. The assumption that the containers would be full, however, proved to be incorrect. In practice, many containers shipped from the generator and storage sites were not full but rather overpacked , as described above. Because the permit incorrectly assumed the containers would be full of TRU mixed waste, this "creat[ed] a de facto limit that could result in underutilizing the WIPP facility." Before the permit modification at issue, the method of determining the volume of TRU mixed waste at WIPP was not explicitly stated in the permit.
{8} Permittees submitted to NMED a permit modification request (PMR4 ), proposing two distinct methods for measuring waste volume to distinguish between TRU mixed waste and TRU waste. Following public notice, meetings, and comments, the Hearing Officer issued a report recommending the creation of two distinct volume calculation methods in the permit, stating, "The first type of calculation [based on TRU mixed waste] is based on the outermost disposal container and ... pertains to RCRA requirements. "The second type of calculation is based on the [TRU] waste inside the disposal containers and pertains to the LWA capacity limit." The Hearing Officer reasoned that the outer container volume "is only significant for the emplacement footprint of waste" in an HWDU at the WIPP—because HWDUs have a maximum physical capacity—whereas only the volume of TRU waste inside the disposal container pertains to and is significant for the LWA capacity limit of 6.2 million cubic feet.
{9} The PMR did not seek an increase of WIPP's disposal capacity, but rather sought to clarify that the maximum capacity of the WIPP facility as it pertained to the Permit under RCRA was based on the TRU mixed waste capacities of the individual HWDUs rather than on the limitation established in the LWA. The Hearing Officer noted that although tracking the LWA TRU waste volume based on the inner container separately from the RCRA TRU mixed waste volume based on the outer container could theoretically increase WIPP's emplacement footprint by approximately 30 percent, the Permittees would have to submit an additional PMR to increase the footprint of WIPP. NMED adopted the Hearing Officer's recommendation and approved the PMR. Appellants contend NMED erred in approving the PMR.
{10} Appellants first argue the Hearing Officer should have been disqualified and his report and NMED's order vacated, because of his contract with NMED. Appellants contend the failure to disqualify the Hearing Officer was a "fatal flaw" in the process, denying litigants an impartial tribunal and violating their due process rights. Appellants fail to cite to any evidence establishing that the Hearing Officer's decision in this case reflected prejudice or bias; instead Appellants rely solely on the Hearing Officer's contract with NMED, which provided for payment at an hourly rate.5 Appellants contend that payment alone provided an incentive to handle hearings to NMED's satisfaction. Appellants failed to preserve this issue by raising it below, raising it only after NMED issued its order, and we decline to reach it. See Rule 12-321(A) NMRA ; State v. Leon , 2013-NMCA-011, ¶ 33, 292 P.3d 493 ; Pickett Ranch, LLC v. Curry , 2006-NMCA-082, ¶ 3, 140 N.M. 49, 139 P.3d 209 ().
{11} Appellants next argue NMED improperly ordered approval of the PMR. Under the HWA, this Court reviews an administrative order of NMED to determine whether the order is "arbitrary, capricious or an abuse of discretion; ... not supported by substantial evidence in the record; or ... otherwise not in accordance with law." Section 74-4-14(C). Appellants bear the burden of showing relief is warranted. Doña Ana Mut. Domestic Water Consumers Ass'n v. N.M. Pub. Regul. Comm'n , 2006-NMSC-032, ¶ 9, 140 N.M. 6, 139 P.3d 166. We review an agency's conclusions of law de novo. Law v. N.M. Hum. Servs. Dep't , 2019-NMCA-066, ¶ 11, 451 P.3d 91.
{12} Appellants raise five arguments to support their contention that NMED's order approving the PMR was not in accordance with the law. Appellants contend NMED's order (1) abandons the State's authority under RCRA, (2) misinterprets the LWA, (3) creates a conflict between RCRA and the LWA, (4) DOE lacks the authority to interpret or enforce the terms of the LWA, and (5) the order violates a Consultation and Coordination agreement between the State and...
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